2018 Farm Bill awaits President’s signature after Congress passes legislation that would legalize hemp culivation

Photo © iStockphoto.com/AlenaPaulus

The Agriculture Improvement Act of 2018 is poised to be signed into law by President Trump after passing the House of Representatives on December 10 and the Senate on December 11. The Hemp Farming provision of the Act, mostly unchanged from the Hemp Farming Act legislation originally proposed by Senate Majority Leader Mitch McConnell (R-KY), was included in the bill. This provision removes hemp from Schedule I of the Controlled Substances Act, defining it as distinct from marijuana and removing the authority of the Drug Enforcement Agency over hemp cultivation and hemp products.

Specifically, hemp is defined as the plant Cannabis sativa L., or any part of the plant, including the seeds, derivatives, and extracts with Tetrahydrocannabinol (THC) levels that do not exceed 0.3% by dry weight. This means that cultivating hemp is now legal in the United States, not just on a state-by-state basis, although each state can still maintain its own rules about hemp cultivation as long as those rules don’t alter the definition of hemp set forth by the Agriculture Improvement Act. States or tribal governments must submit their plans for hemp regulation to the U.S. Department of Agriculture, which will have regulatory authority over the crop’s cultivation and processing as it does over other agricultural crops grown in the U.S. 

However, the U.S. Food and Drug Administration (FDA) still has authority over any hemp ingredient used in food, dietary supplements, and cosmetics. So, while the soon-to-be-passed Farm Bill does loosen regulation substantially for hemp cultivation, it does not technically legalize the use of CBD in food, dietary supplements, and cosmetics-a common misconception. FDA continues to hold the opinion that CBD cannot be used as a dietary ingredient in food or dietary supplements because CBD was investigated as a new drug by GW Pharmaceuticals, whose CBD drug Epidiolex is now approved by the agency as a pharmaceutical. That means that food and supplement products that market themselves as CBD products still remain at risk of enforcement action from FDA. Many of these brands have already been avoiding using the term CBD on their labels, opting instead for terminology like “full-spectrum hemp extract” for this reason.

But many see hemp’s good news in the Farm Bill as a possible stepping stone to potential authorization of CBD in food and dietary supplements one day in the future. “This provision removes one of the barriers to the lawful marketing of CBD in a range of dietary supplement, food, and personal care products and will allow for greater research and understanding of this substance as a legitimate agricultural commodity,” said Steve Mister, president and CEO of the Council for Responsible Nutrition (CRN; Washington, DC), in a press statement. “The dietary supplement and functional food industry is now able to work with FDA to address the legal concerns it has raised with respect to CBD as a legitimate ingredient in food and dietary supplements.”

He added: “However, in anticipation of increased market interest in CBD, CRN reminds industry that the Farm Bill has no effect on FDA’s position that CBD is excluded from use in food and dietary supplements.”

While the passage of the Hemp Farming Provision in the Farm Bill is a win for the industry, the final draft of the Agricultural Improvement Act of 2018 did not include other provisions sought by supplement industry leaders, such as the SNAP Vitamin and Mineral Improvement Act, which would have allowed SNAP beneficiaries to use their benefits to purchase vitamin and mineral dietary supplements. This has been a heavily lobbied initiative by the industry. “We are saddened that low-income Americans will not be given access to this option to help improve nutrient gaps in their diet,” stated Mister. “CRN remains committed to expanding consumer access to multivitamins and will continue to support policies that ensure all Americans, regardless of socioeconomic status, have equal opportunity for good nutrition.”